Roberts v. Watson

• Decision Date: 08 February 1977
• Docket Number: No. 2--1174A271,2--1174A271
• Citation: 359 N.E.2d 615,172 Ind.App. 108
• Parties: Ronald G. ROBERTS and Opal V. Roberts, Appellants (Defendants below), v. Richard P. WATSON and Rena Jo Watson, Appellees (Plaintiffs below).
• Court: Indiana Appellate Court

Page 615

359 N.E.2d 615

172 Ind.App. 108

Ronald G. ROBERTS and Opal V. Roberts, Appellants (Defendants below), v. Richard P. WATSON and Rena Jo Watson, Appellees (Plaintiffs below).

No. 2--1174A271.

Court of Appeals of Indiana, First District.

Feb. 8, 1977.

Rehearing Denied March 31, 1977.

Kent H. Musser, Harvey E. McDonald, McDonald & Musser, John L. Fox, Indianapolis, for appellants

Charles S. Gleason, Rodger K. Hendershot, Watson, Gleason & Hay, Indianapolis, for appellees.

LOWDERMILK, Judge.

CASE SUMMARY

This cause was transferred from the Second District to this office in order to lessen the disparity in caseloads among the Districts.

Defendants-appellants Ronald G. and Opal V. Roberts appeal from a judgment in a bench trial in favor of plaintiffs-appellees Richard P. and Rena Jo Watson.

Affirmed in part and reversed in part.

FACTS

This action arose out of a lease executed by the parties on December 1, 1972. The Watsons leased a portion of their commercial building on Shadeland Avenue in Indianapolis to the Roberts for use as a carryout restaurant.

The Roberts agreed to an annual rental of $5,000 to be paid at the rate of $416.66 per month, payable in advance on the first of each month. The term of the lease was to begin when the premises was ready for occupancy and to run for five years thereafter. In the event of a default by the Roberts, the Watsons were provided a lien on the Roberts' personal property which was on the premises and were given the right to take said property. The lease did not mention attorney's fees.

Richard and Ronald disputed when the term began and, therefore, when the initial rent payment fell due.

On October 4, 1973, the Watsons filed their complaint alleging: (1) the execution of the lease, (2) that the term thereof commenced Pursuant to court order Ronald was ejected from the premises on November 7, 1973. The trial court on July 13, 1974, entered judgment, stating inter alia:

on July 1, 1973, (3) that the Roberts' deposit was applied to the July, 1973, rent, and (4) that the Roberts failed to pay the rent due on the first of August and September, 1973. The Watsons prayed for possession of the premises and for $24,583.34--the total rent under the lease minus the July, 1973, rent.

'And the Court having considered all of the pleadings and evidence admitted herein and being duly and sufficiently advised in the premises now finds for the Plaintiffs on their Complaint and against the Defendants, and further finds for the Plaintiffs and against the Defendants on the Defendants' Counter-Complaint.

'And the Court further finds that the Plaintiffs have been damaged in the total sum of Sixteen Thousand Five Hundred Thirty-one Dollars ($16,531.00) to the date of the entry of this judgment, plus costs.

'And the Court further finds that the reasonable value of the equipment and inventory on November 7, 1973, being the date possession was taken by the Plaintiffs from the Defendants pursuant to Court Order, including improvements and betterments therein contained, if any, was Three Thousand Eighty-nine Dollars and twenty-nine cents ($3,089.29) and that the herein Judgment against the Defendants should be credited by that sum upon the transfer of title to said equipment, inventory, improvements and betterments to the Plaintiffs as hereinafter ordered.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the Plaintiffs shall have judgment for damages to the date of this entry against the Defendant and each of them, jointly and severally, in the sum of Sixteen Thousand Five Hundred Thirty One Dollars ($16,531.00), plus costs of this action.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants, and each of them, take nothing from and on their Counter-Complaint.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that possession of the premises . . . be, and the same is hereby ordered with and to the Plaintiffs, and that all title, right and interest, of the Defendants in and to all inventory, equipment, improvements and betterments, if any, contained in or on the premises . . . on the 7th day on November, 1973, be, and the same is hereby vested in the Plaintiffs, jointly and severally, and the aforesaid Judgment is hereby credited with the sum of Three Thousand Eighty-Nine Dollars and Twenty-nine Cents ($3,089.29), being the value thereof as heretofore found by the Court, and the aforesaid judgment is hereby reduced to Thirteen Thousand Four Hundred Forty One Dollars and Seventy one Cents ($13,441.71), plus costs of this action.'

ISSUES

1. Did the trial court have personal jurisdiction over Opal.

2. Whether the trial court erred in its treatment of Ronald's evidence pertaining to when the premises was ready for occupancy.

3. Whether the trial court's court award of $16,531 in damages was erroneous.

4. Whether the trial court erred in valuing Ronald's personal property at $3,089.29.

DECISION

The Watsons assert that Ronald, by making no reference in his appellant's brief to the filing and denial of his motion to correct errors, failed to invoke the jurisdiction of this court and waived Issues Two through Four.

According to Ind. Rules of Procedure, Appellate Rule 8.3(A)(4) the statement of the case in an appellant's brief should include a recitation that a motion to correct errors was filed in the trial court and denied.

However, the record in the case at bar clearly shows the filing of Ronald's motion to correct errors and its denial.

Therefore, we will not hold the omission in this case to be jurisdictional or to constitute a waiver of all issues raised by Ronald. As this court stated in Smith v. Chesapeake and Ohio Railroad Co. (1974), Ind.App., 311 N.E.2d 462, 465:

'This court prefers to decide cases on their merits whenever possible . . . Appellant has substantially complied with the requirements of Rule AP 8.3. We therefore elect to proceed to a determination of the issues presented in this appeal.' (Citation omitted)

ISSUE ONE:

As to Opal, the critical question is whether there was sufficient service of process. If not, the trial court did not have personal jurisdiction over her so that its judgment is void as to her. Chesser v. Chesser (1976), Ind.App., 343 N.E.2d 810.

The summons issued in that instant cause listed the defendants as 'Ronald G. Roberts and Opal V. Roberts (,) 6902 East 48th Street (,) Indianapolis . . .' Counsel for the Watsons designated service by registered or certified mail. The clerk of the trial court certified that the summons and a copy of the complaint were mailed by certified mail, return receipt requested, to the address furnished by the Watsons. The clerk's return showed that Ronald accepted the summons and complaint.

On July 8, 1974, Opal's counsel filed a motion to correct errors ¹ demanding that the judgment not include her inasmuch as she did not receive notice of the action, did not know she was a party thereto until after judgment had been entered against her, and did not authorize Ronald's counsel to represent her. In her supporting affidavit she averred that she had been separated from Ronald since March, 1973, did not see a summons or have one read to her, first learned of the judgment when it was executed against her, and had never seen or communicated with Ronald's counsel. Ronald filed an affidavit to the same effect, and also averred that the summons and complaint were delivered to him at his residence at 7709 E. 47th Street and that he had been the sole proprietor of the restaurant. No opposing affidavits were filed.

Inasmuch as the Watsons ignored their right under Ind. Rules of Procedure, Trial Rule 59(D) to contradict the Roberts' averments by submitting counter-affidavits, we are bound to accept as true the facts averred in the Robert's affidavits. Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592.

Counsel for the Watsons opted to attempt service of process on the Roberts under Ind. Rules of Procedure, Trial Rule 4.1(A)(1), which provides:

'Service may be made upon an individual . . . by sending a copy of the summons and complaint by registered or certified mail . . . to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter . . ..'

The service of process in the case at bar did not conform to TR. 4.1(A)(1) inasmuch as the United States Postal Service, which the Watsons' counsel selected as the server of process, did not in fact send the summons and complaint to Opal's residence, place of business, or place of employment. We feel that justice is best served by thrusting the risk of the Postal Service's misfeasance upon the parties who elected to utilize the service, rather than allowing Opal to suffer a judgment against her although she was not afforded her right to notice and an opportunity to be heard. We note that the Postal Service could have been requested to '(s)how to whom, date and address where delivered' on the return receipt to insure that the Watsons would have notice of improper service and would have an opportunity to effect proper service.

The Watsons argue that the service of process in this case complied with Ind. Rules of Procedure, Trial Rule 4.6(A)(2). They contend that Opal and Ronald were partners by estoppel so that service upon Ronald constituted service upon the partnership under TR. 4.6(A)(2).

We decline to hold that spouses create a partnership by estoppel under IC 1971, 23--4--1--16 when they enter into a lease of commercial property. In executing the lease the Roberts held themselves out only as 'husband and wife' and not as partners.

The Watsons also rely on Ind. Rules of Procedure, Trial Rule 4.15(F) for authority that the service of process here was sufficient. However, TR. 4.15(F) will not cure service of process when there has been no service on a party. 1 Harvey, Indiana Practice 415 (1969).

Inasmuch as the service of process in the instant case was not sufficient the trial court had no...